MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 October 2001                   
	DOCKET NUMBER:   AR2001056132

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be promoted to Chief Warrant Officer Three (CW3), U. S. Army Reserve (USAR) with a date of rank of 6 July 1997 and that he receive back pay retroactive to that date.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL STATES:  Counsel for the applicant states that the applicant was selected for promotion to CW3 by the 1996 Army Reserve Components Selection Board and advised that his effective date of promotion would be 6 July 1997.  Thereafter, he was notified that he was required to Show Cause for retention on the grounds that he had allegedly used marijuana.  The Show Cause board was not convened for approximately 2 years.  He was exonerated of any wrongdoing and it was concluded that he did not use illegal drugs and that he should not be discharged from the USAR.  Therefore, the applicant is entitled to be promoted.

EVIDENCE OF RECORD:  The applicant's military records show:

He was appointed a Warrant Officer One in the USAR on 6 July 1989.  He was promoted to Chief Warrant Officer Two (CW2) on 6 July 1991.  He was notified by letter dated 24 June 1996 that he had been selected for promotion to CW3 with a promotion eligibility date of 6 July 1997.

On an unknown date but prior to 6 July 1997, the applicant transferred to the Army National Guard (ARNG).

Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers (but not warrant officers) of the Army National Guard of the United States.  It applies to commissioned and warrant officers of the USAR.

National Guard Regulation 600-101 prescribes polices and requirements for Federal Recognition of promotion of warrant officers in the ARNG.  It states that the promotion of warrant officers in the ARNG is a function of the State.  A warrant officer promoted by State authorities has a State status in the higher grade.  However, to be extended Federal recognition in the higher grade, the warrant officer must have satisfied the requirements prescribed by this regulation.  Figure 7-2 shows that the immediate commander recommends a warrant officer for promotion to the next higher grade in the State ARNG.  The recommendation is routed to a Federal Recognition Board, whose favorable recommendation is approved by the State Adjutant General or representative.

In the processing of this case, an advisory opinion was obtained from the U. S. Total Army Personnel Command, Office of Promotions, Reserve Components.  That office stated that Reserve selection for warrant officer promotion does not transfer to the National Guard.  Since the applicant transferred to the ARNG prior to his promotion eligibility date of 6 July 1996, their office cannot promote him.

A copy of the advisory opinion was provided to the applicant and his counsel for comment or rebuttal.  Neither responded within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The evidence shows that it was not the fact the applicant had to Show Cause that caused him not to be promoted.  He was not promoted because he had transferred to the ARNG prior to his promotion eligibility date.  A USAR selection for warrant officer promotion does not transfer to the National Guard.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__fne___  __mhm___  __bje___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001056132	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.